West v. Davis
ORDER: This case comes before the Court on remand from the Eleventh Circuit Court of Appeals for consideration of Defendant's Motion for Summary Judgment 28 under the framework of the Fourth Amendment. After considering the record, the Court GRANTS Defendant's 28 Motion for Summary Judgment. Signed by Judge Richard W. Story on 12/9/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
LISA Y.S. WEST,
DEPUTY TERRY DAVIS,
CIVIL ACTION NO.
This case comes before the Court on remand from the Eleventh Circuit
Court of Appeals for consideration of Defendant’s Motion for Summary
Judgment  under the framework of the Fourth Amendment. After
considering the record, the Court enters the following Order.
This case arises out of a confrontation between a Fulton County Sheriff’s
Deputy and an attorney in the security line at the Fulton County Courthouse.
On December 9, 2010, Plaintiff Lisa Y.S. West arrived at the courthouse to
serve as counsel in a domestic relations status conference. (Def.’s Statement of
The factual background is taken from the Court’s October 15, 2013 Order 
granting Defendant’s Motion for Summary Judgment .
Material Facts (“Def.’s SMF”), Dkt. [28-1] ¶¶ 1, 12.) Defendant Fulton County
Sheriff’s Deputy Terry Davis was on duty at the time. (Id. ¶ 10.)
As she arrived at the security line to enter the courthouse, Plaintiff put
her personal belongings in a bin and then proceeded through the metal detector.
(Id. ¶ 14.) When the alarm sounded, Defendant approached her and told her to
remove her jacket. (Id. ¶¶ 15-16.) Plaintiff refused, stating that the jacket was
part of her suit and that removing it would expose her undergarments. (Id. ¶
18.) The Fulton County Sheriff’s Office’s unwritten policy is that “members of
the public need not remove suit jackets before walking through the metal
detector,” and Sheriff Deputies must use their discretion to decide which pieces
of clothing are suit jackets and which are coats. (Id. ¶¶ 6-7.) Plaintiff claims
that Defendant told her that she would not be permitted into the courthouse if
she did not remove her jacket. (Id. ¶ 19.) If she failed to comply but remained
in the courthouse, she was told she would be arrested. (Pl.’s Resp. to Def.’s
Statement of Material Facts, Dkt.  ¶ 19.) Plaintiff further claims she felt
uncomfortable because Defendant was standing too close to her, and he lowered
his eyes and looked at her chest. (Def.’s SMF, Dkt. [28-1] ¶¶ 20-21.)
According to Plaintiff, after her request to speak to a supervisor,
“[Defendant] put his hand on his handcuffs, glared at her ‘menacingly,’ and
paced back and forth.” (Id. ¶ 23.) Plaintiff walked to the entrance area to wait
while Defendant called a supervisor. (Id. ¶ 24-25.) While waiting, she decided
to use her cell phone to call her husband and then the client she was supposed to
meet in court. (Id. ¶ 27.) Defendant then approached her and told her to get off
her phone. (Id. ¶ 28.) Cell phone use is prohibited near the magnetometer and
x-ray machines by the courthouse entrances. (Id. ¶ 8.) When she did not
comply, Plaintiff asserts that Defendant “grabbed her hand, squeezed it, jerked
it towards him, wrenched it back and forth, and then forcibly removed the cell
phone and flung it into her purse.” (Pl.’s Statement of Material Facts, Dkt. 
¶ 13.) Defendant, however, states that he took the phone without grabbing her
hand or using force. (Id. ¶ 14.) Once the supervisor arrived, he permitted
Plaintiff to enter the courthouse after directing Defendant to use a “wand” metal
detector that did not require her to remove the jacket. (Id. ¶¶ 16, 18.)
Plaintiff brought this action alleging Defendant used excessive force in
violation of the Fourth Amendment and is liable under state law for battery,
negligence, and excessive use of force in violation of the Georgia Constitution.
Plaintiff maintains that as a result of Defendant’s alleged use of force, she
suffered a sprained wrist and then developed carpel tunnel syndrome several
weeks later, which ultimately required surgery. (Id. ¶ 18; Depo. of Lisa Y.S.
West, Dkt. [28-11] at 98-103.) On October 15, 2013, the Court granted
summary judgment in favor of Defendant, holding that Defendant’s actions did
not amount to a seizure under the Fourth Amendment. (Dkt. .) The Court
therefore analyzed Plaintiff’s claim under the Fourteenth Amendment’s
substantive due process/shock the conscience standard rather than the Fourth
Amendment’s objective reasonableness standard and found no constitutional
violation. On September 8, 2014, the Eleventh Circuit Court of Appeals
reversed and remanded, holding that the proper framework for analyzing
Plaintiff’s claim was the Fourth Amendment’s objective reasonableness
standard because Defendant’s actions constituted a seizure. The Court
considers Plaintiff’s excessive force claim under the Fourth Amendment below.
Summary Judgment Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “The moving party bears the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259
(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986))
(internal quotation marks omitted). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of
material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences which
are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
To show an excessive force claim under the Fourth Amendment, a
plaintiff “must allege (1) that a seizure occurred and (2) that the force used to
effect the seizure was unreasonable.” Troupe v. Sarasota Cnty., Fla., 419 F.3d
1160, 1168 (11th Cir. 2005). Courts rely on several factors “in determining
whether an officer’s use of force was objectively reasonable, including ‘(1) the
need for the application of force, (2) the relationship between the need and the
amount of force used, (3) the extent of the injury inflicted and, (4) whether the
force was applied in good faith or maliciously and sadistically.’ ” Hadley v.
Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (quoting Slicker v. Jackson,
215 F.3d 1225, 1233 (11th Cir. 2000)). “Although the facts must be taken in
the light most favorable to the plaintiff, the determination of reasonableness
must be made from the perspective of the officer . . . .” Troupe, 419 F.3d at
Defendant argues that even if his actions amounted to a seizure under the
Fourth Amendment, he is still entitled to qualified immunity on Plaintiff’s
excessive force claim. The doctrine of qualified immunity protects government
officials performing discretionary functions from being sued in their individual
capacities. Wilson v. Layne, 526 U.S. 603, 609 (1999). Officials are shielded
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). “To receive qualified immunity, a
government official first must prove that he was acting within his discretionary
authority.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). Once the
government official has satisfied this initial burden, the burden shifts to the
plaintiff to show that the official is not entitled to qualified immunity. Id. at
1358. Plaintiff does not dispute that Defendant was acting within his
discretionary authority at the time of the incident; therefore, it is her burden to
show that he is not entitled to qualified immunity.
Whether an official is entitled to qualified immunity is determined by a
two-step inquiry: One inquiry is “whether the plaintiff’s allegations, if true,
establish a constitutional violation.” Barnett v. City of Florence, 409 F. App’x
266, 270 (11th Cir. 2010) (citing Hope v. Pelzer, 536 U.S. 730, 736 (2002)).
“If the facts, construed . . . in the light most favorable to the plaintiff, show that
a constitutional right has been violated, another inquiry is whether the right
violated was ‘clearly established.’ ” Id. (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)). “Both elements of this test must be present for an official to lose
qualified immunity, and this two-pronged analysis may be done in whatever
order is deemed most appropriate for the case.” Id. (citing Pearson v. Callahan,
555 U.S. 223, 241 (2009)). Thus, even assuming Defendant violated Plaintiff’s
Fourth Amendment rights by wrenching her phone out of her hand, Defendant
is still entitled to qualified immunity if that right was not clearly established at
the time of his actions.
A constitutional right is clearly established “only if its contours are
‘sufficiently clear that a reasonable official would understand what he is doing
violates that right.’ ” Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A plaintiff can
demonstrate that the contours of a right were clearly established using two
methods. First, a plaintiff can point to relevant case law to show a right is
clearly established. Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir.
2011). While the fact patterns of prior cases used to show that a right is clearly
established need not be “fundamentally similar” or even “materially similar,”
the salient question is whether the law at the time of the alleged violation gave
officials “fair warning” that their acts were unconstitutional. Holmes v.
Kucynda, 321 F.3d 1069, 1078 (11th Cir. 2003) (quoting Hope, 536 U.S. at
Second, a plaintiff can show that an officer’s conduct violated a right
with “obvious clarity”; in other words, the “conduct ‘lies so obviously at the
very core of what the Fourth Amendment prohibits that the unlawfulness of the
conduct was readily apparent to [the officer], notwithstanding the lack of factspecific case law.’ ” Fils, 647 F.3d at 1291 (quoting Vinyard v. Wilson, 311
F.3d 1340, 1355 (11th Cir. 2002)). The Eleventh Circuit has explained that this
method “is a ‘narrow exception’ to the normal rule that only case law and
specific factual scenarios” can “provide an officer with notice of the ‘hazy
border between excessive and acceptable force.’ ” Id. (quoting Lee v. Ferraro,
284 F.3d 1188, 1198-99 (11th Cir. 2002)). Thus, an absence of case law does
not entitle an officer to qualified immunity “where the officer’s conduct is so
outrageous that it clearly goes ‘so far beyond’ these borders.” Id. (quoting
Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008)). Qualified immunity
therefore “protects ‘all but the plainly incompetent or those who knowingly
violate the law.’ ” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Plaintiff argues both that previous Eleventh Circuit case law gave
Defendant fair warning that his actions would violate the Fourth Amendment
and that Defendant’s actions lie at the core of what the Fourth Amendment
prohibits. Plaintiff cites several Eleventh Circuit cases in arguing that “[t]he
law was clearly established in 2010 that it is a Fourth Amendment violation to
use physical force against a free citizen who is compliant and not resisting
arrest.” (Pl.’s Supplemental Br., Dkt.  at 4, 11.) In Thornton v. City of
Macon, 132 F.3d 1395, 1400 (11th Cir. 1998), for example, a woman asked
officers to assist her in exchanging possessions with her former roommate.
When the plaintiff refused to make the exchange, the officers entered his private
residence and arrested him for obstruction of justice. Because “the plaintiff had
committed no crime” and the officers had no warrant to enter the residence, the
court held that the officers were “merely attempting forcibly to resolve a civil
dispute” and thus acted outside of their duty to maintain the peace when they
arrested the plaintiff. Thornton, 132 F.3d at 1399.
Next, in Hadley v. Gutierrez, the plaintiff was arrested at a grocery store
and placed in handcuffs behind his back. 526 F.3d at 1327. As he was being
led outside, an officer punched him in the stomach “even though he was not
struggling or resisting.” Id. at 1330. The court found that the officer used
excessive force and further found “that a handcuffed, non-resisting defendant’s
right to be free from excessive force was clearly established” at the time of the
assault. Id. at 1333.
In another case, Fils v. City of Aventura, a plaintiff alleged that he was
assaulted by police with tasers outside a nightclub after he commented that the
police were overreacting in arresting another individual. See 647 F.3d at 127678. The plaintiff stated that after making his comments, a police officer drew
his taser and pointed it at him. Id. at 1277. The plaintiff then raised his hands
without making any menacing gestures towards the officers or disobeying their
orders. Id. Even so, two officers fired their tasers, and the plaintiff fell to the
ground. Id. The plaintiff did not resist the officers’ attempts to handcuff him,
yet one officer “put his knees on [the plaintiff’s] back and applied a contact tase
to the back of his neck, ‘grinding’ the taser and saying ‘you motherfucker, you
motherfucker.’ ” Id.
Plaintiff argues that these cases clearly establish it was unreasonable to
use any force against her under the circumstances. While cases need not be
materially similar, these cases are distinguishable in at least a couple of
important respects. First, in Thorton the officers acted wholly outside their
duties in making the arrest, see 132 F.3d at 1399 (forcibly resolving a civil
dispute), while here Defendant was lawfully screening entrants to the Fulton
County Courthouse. Second, while Plaintiff asserts Defendant was like the
officers who assaulted cooperative individuals offering no physical resistance,
see Fils, 647 F.3d at 1277 (tasing non-resistant arrestee); Hadley, 526 F.3d at
1330 (punching non-resistant arrestee in the stomach), from Defendant’s
perspective Plaintiff was not cooperative. Those cases also took place in the
context of arrests, not screening at a courthouse security line. Here, on the
other hand, even though Plaintiff was not physically resisting arrest, she was
not cooperative, which was a cause for concern given that she had just set off
the metal detector. Comparing the facts in this case to previous Eleventh
Circuit cases, preexisting case law did not give Defendant “fair warning” that
forcibly terminating a phone call after giving Plaintiff a warning was
unconstitutional in these circumstances.
While these cases do not clearly establish a constitutional violation,
Plaintiff also argues that Defendant’s actions violated her Fourth Amendment
rights with “obvious clarity” such that Defendant is not entitled to qualified
immunity. According to Plaintiff, since she was compliant and not resisting
arrest, “no reasonable officer would have believed that it was reasonable to use
physical force against [her].” (Pl.’s Supplemental Br., Dkt.  at 5.)
It was not obvious, however, that Defendant was unjustified in using any
force in the situation he faced. Taking Plaintiff’s facts as true, Plaintiff told
Defendant that removing her coat would reveal undergarments. Yet she also
acknowledges that the top ribbing of her white long-sleeved, round-necked
thermal shirt was visible. (Pl.’s Resp. to Def.’s SMF, Dkt.  ¶ 17.) The
double-breasted jacket also appeared to be a winter overcoat rather than a suit
jacket. (See Photos, Dkt. [28-5, 28-6].) Still, Plaintiff points out that Defendant
could have screened her with a wand instead of demanding that she take off her
jacket. Defendant certainly could have handled the situation differently, and it
is easy to conclude that he overreacted. As the Supreme Court has explained,
however, Defendant’s actions are to be evaluated “from the perspective of ‘a
reasonable officer on the scene,’ and not through ‘the 20/20 vision of
hindsight.’ ” Harper v. Davis, 571 F. App’x 906, 910 (11th Cir. 2014) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)).
Defendant was responsible for screening entrants to the courthouse when
Plaintiff refused to remove her jacket after setting off the alarm. Plaintiff then
proceeded to talk on the phone in the screening area after Defendant told her to
terminate the call. So, while Plaintiff was not physically resisting or assaulting
Defendant in the course of an arrest, from Defendant’s perspective she was
uncooperative and might have posed a risk to others in the courthouse or those
waiting in the security line. Thus, when Defendant wrenched the phone out of
Plaintiff’s hand and ended her call, he states it was “to maintain control of the
situation.” (Pl.’s Statement of Additional Material Facts, Dkt.  ¶ 14.)
Given these circumstances, it was not obviously clear at the time that
Defendant’s conduct was so outrageous that it went “so far beyond” the Fourth
Amendment’s “hazy border between excessive and acceptable force” so as to
deprive Defendant of qualified immunity. See Fils, 647 F.3d at 1291(quoting
Lee v. Ferraro, 284 F.3d 1188, 1198-99 (11th Cir. 2002)). In sum, assuming
without deciding that Defendant’s use of force was excessive, the law did not
clearly prohibit his conduct at the time of the incident. Consequently,
Defendant is entitled to qualified immunity.
For the foregoing reasons, Defendant’s Motion for Summary Judgment
 is GRANTED.
SO ORDERED, this 9th
day of December, 2014.
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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